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tv   [untitled]    May 2, 2012 12:00pm-12:30pm PDT

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submitting a declaration at the pails to the board and of actually having to testify in a proceeding like this, so if anybody can submit a declaration and not have to testify, i think they would agree that the board is much less than having to testify. >> i agree. if we think it would end at the declaration where there is uncontroversial, we have no problem submitting just declarations for those witnesses. chair hur: does the mayor dispute that he has the burden of proof here? >> no. chair hur: what about timing? when would you anticipate being ready to call witnesses if live testimony were permitted? >> well, that depends on a lot of the proceedings that are going on right now. as we detailed in our memo, there are several instances of
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hostile witnesses and and lack of cooperation on the part of the sheriff, using the mayor subpoena power to go to court to get orders for people to comply with subpoenas and also to go to court to get an order to release evidence, criminal court, so assuming all of those chips fall into place and nobody makes any objections, which, frankly, is an assumption that i doubt will ever happen. we expect to be fought every inch of the way on these things. assuming that this court dates came and the subpoena dates came, and we got those without objection, we would be ready to proceed in june, but i very much doubt that is going to happen. chair hur: any other questions for him at this time? thank you.
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>> thank you. chair: i do not know when you got this memo, but have you had an opportunity to review it? >> i have. chair hur: what about this and the response? >> well, if i could, i would like to preface my remarks that i think at the outset, we need to make our objections known for any of these proceedings occurring, because the mere fact we are here to try to figure out the rules by which this process is going to work demonstrates the constitutional infirmity of the proceedings, and we object. we objected to the commission doing anything other than dismissing the written charges of misconduct and bring the proceedings to a halt. now, having said that, i think i
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am enough of a political realist to understand we're going to have to go forward with the proceedings. i do not think we have a fixed instant decision in the proper order to do things. until we understand what the mayor's evidence is or what is proposed evidence is, there is no way that we can formulate what our response to witnesses or testimony would be. we have the same information as you, the rich and allegations of misconduct, but what i think i just heard him say is that we do not get the evidence to support those charges. the charges were brought before the evidence was in the mayor's possession, so we need to know what they are going to present before we figure at how we will respond. number one. number two, we urgently need clarification from this
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condition as to whether or not sheriff mirkarimi is required by law to cooperate with this, quote, investigations that the city attorney has embarked upon, and as we wrote in a letter to the commission, and i trust you have already received that -- chiar hur: what are you referring to? >> i assumed it had been delivered, and if not, i apologize. the city attorney has been trying for a week or more to try to get sheriff mirkarimi to turn over his lawyers files from a criminal case, to sit down for an interrogation, all under the authority of an alleged,
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unbounded city attorney right to investigate. now, the charter provisions that i have looked at indicate that if there is an alleged violation of the san francisco campaign and governmental conduct could, a complaint may be made to this commission, and it is this commission that decides to initiate the investigation, and the city attorney may participate in that investigation. i do not see anything in the charter or any other statutes that permit the city attorney to go out and start their own investigation. we need clarification on that issue immediately and urgently, because it seems to us that we would be fighting with one hand tied behind our back if they can go out and prepare whatever they need to prepare to proceed with this proceeding before you all have even promulgated rules of
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procedure that will hopefully proceed in an orderly fashion. now, i did want to address one point that mr. keith may. we do not intend to argue that these proceedings need to be private. indeed, we think they should be public because i think at the end of the day, there is a lot of innuendo and talk about the share dissuading people. the mayor's written charges say that he may have tried to dissuade a witness, and i want to mark my words. when all of this is said and done, it will be crystal clear that the sure did no such thing, and we want that to be clear to the people of san francisco. hiair -- chair hur: let me stop you there. so there is no dispute that the penal code section should not apply?
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>> correct. now, with respect to briefing schedules prior to the taking of testimony, whether it is with a declaration or live witnesses, i could answer almost all of the questions that the commission raised in the memo right here. i can tell you what we think the burden of proof should be. i can tell you what evidence we think you should rely on and go all of the way down the list if you would like me to do that. we do have an interest in accelerating the proceedings as quickly as possible, because we think the longer this drags on, it is not only detrimental to share of mirkarimi, it is detrimental to the city, so we are not in favor of a lengthy proceedings, pre-and post trial. we can certainly do the same
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orbit. i do not been as of last be set forth in a lengthy fashion. of course, if you think that is beneficial, we will certainly cooperate. chair hur: if we did not need written briefs, how quickly would you -- would you want a procedure where the mayor would go first with an opening brief and then you would respond? which you prefer simultaneous briefings? >> the former would be preferable to us, just as it would be preferable to us that they disclose what evidence is that they intend to rely on so we can prepare to respond. to me, this is somewhat akin to a criminal prosecution, in a sense, and one of the reasons why i made my objection earlier to these proceedings is in a criminal case, if they did and it was hauled into court, and a judge told them, you have been charged by a crime -- charge of the crime by the d.a., and now
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we will determine the standard of proof, i do not think anybody would be happy. we think it is essential that they tell us what they intend to prove and have noticed. notice is the hallmark of due process, and that is what we're trying to make sure happens here. chair hur: sensitive to the fact that you would like the proceedings to go as quickly as due process allows, what would that briefing schedule look like in your mind? if you could set it? >> well, i think it is depending on when the mayor thinks he has all of the evidence that he needs to present. in terms of the legal points raised in the memo, as i say, i think we could receive their memo as soon was prepared and respond within one week or so. certainly on the legal
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questions, the standard of proof, one point not on here is whether or not the commission has to vote unanimously to recommend removal for sustaining these charges. we firmly believe that should be a requirement. we analogize these proceedings to the existing system and to the government code, section -- under that state's scheme, the accused officials enjoys all the protections that he would under a criminal indictment, and we think that those concepts should be important to this proceeding. chair hur: if it included responding to factual statements, how would that change your time frame, if at all? >> it was significantly extend it, because until we see what their facts are, we cannot really began. we have a general sense of what they are going to try to prove and how we are going to try to
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meet it, but the devil is in the details, so maybe there is something out there that we do not know about. it is awfully hard for me to tell you we would need 30 days or 21 days. we would need significantly longer than a week if this was going to address factual issues. chair hur: do you have a position on the need for live testimony? >> i think it is going to be unavoidable for at least a couple of witnesses. i am not opposed to having declarations submitted for this to can and will submit them and then it either side thinks we have a dispute of fact on this one particular issue, we would like to call the declarant on
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that issue, and the commission makes its ruling on whether or not we can and cannot do that and go forward that way, but i think there are a couple of points that are probably going to be straight credibility calls that are going to require witnesses. chair hur: do you have a position on whether ms. lopez can be called by the mayor? >> i think that depends on whether the city attorney investigation is duly authorized, and that is one of the reasons why i think we need the commission to weigh in on this. i know that the city attorney has been out there serving subpoenas and requesting documents, and it is not an all clear to me that that is legally authorized. chair hur: let me ask this another way.
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do you depend on relying on her testimony? >> we are not in a position to answer for quite some time. chair hur: at this point, i think the mayor identified to he would intend to rely upon. at this point, who would the sheriff rely on? >> i think i'd like to reserve that, if i may. there are about six m eight witnesses that we think we are likely to either some declarations or call as witnesses. sheriff mirkarimi obviously being number one on that list. you know, i think there is a woman on our list, assuming she
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is willing to cooperate and can be called as a witness. chair hur: i do not we -- think we would hold you to this being a final list, but are there others? >> i would like to know if there is, to be some process by which the commission can take into account historical facts not related to this case. that is what has happened in the past when other officials, sheriff's or other types of officials, have been accused in some way, not in these types of proceedings, with having committed misconduct. i think that can inform the commission's decision as to whether or not it is appropriate to recommend that these charges be sustained, so it would be akin to requesting that you take judicial notice of observing
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historical facts, and one of the things that we may want to do is call witnesses, a witness or witnesses to testify about the fact that there are law enforcement officers in the city a serving who have suffered misdemeanor criminal convictions. the mere fact of the mr. mayor criminal conviction in an of itself does not likely impair someone's ability to perform their duties and functions of a peace officer, so those are, without identifying specific people, those are some of the i guess we would call nonfat witnesses that we could conceive of calling. chair hur: that is not really expert testimony. that is -- what would that be intended to prove? >> to demonstrate that whatever
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the mayor's charges are, even if any of them are true, and i think we're probably arrive at a situation on one or two less contested issues -- for example, a guilty plea entered for in mr. leader, we would probably be able to stipulate to that fact, but i do not think it would be unnecessarily -- it could be characterized as expert testimony, but it could be testimony from a law enforcement officers personal experience that that fact in and of itself does not rise to a level of official misconduct and is not related to their duties as a law-enforcement officer. chair hur: ok. other than the legal issue of whether or not the commission needs to vote unanimously in order for it to make a recommendation to the board, are
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there other legal issues in addition to the ones identified by the commission staff that you think should be briefed? >> aside from the one issue i mentioned a couple of times now that we need clarification on whether or not the city attorney investigation is duly authorized by law, i cannot think of any other legal issues that we need to raise. strike that. there is one question i would like answered. we would like, as part of our briefing, to make an argument that the charges, even if everything is believed in the charges and do a symmetry of everything that is in the mayor's charges that it still does not make a case for official misconduct, said this would be on the nature of a demure. we'd like to know if we have the ability to bring such a motion.
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because we are just making it up as we go along. chair hur: assume for the sake of argument that we have a procedure whereby the mayor has the legal issues, and you have one week or so to respond, would you at that time be prepared with that brief to submit the argument for the motion to dismiss or demure? >> yes. i think one week is sufficient time. chair hur: and as far as timing of testimony, it sounds like it depends on when you get certain information from the mayor, but when would -- if live testimony were to be heard, when do you think you would be prepared to
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present and cross-examine witnesses? >> well, there are two potential witnesses that have some conflicts with dates, but i would think certainly within 60 days. which sounds to me if it is going to take close to that long to get to that point, probably. i would like to be prepared within 30 days. chair hur: other questions for him from the commissioners? commissioner: you said you repaired right now to go through your list? i think it would be helpful, if you are prepared to do that. >> sure.
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i am happy to do that. so i am addressing page two. on the legal questions, we believe that the applicable standard of proof should be beyond the reasonable doubt. that is before any commissioner can vote to make a recommendation to the board of supervisors that they should sustain any of these charges, each commissioner should have to be persuaded beyond a reasonable doubt. the reason for that, and, again, i am terribly sorry you did not receive our memo, but there is a state scheme in place for removal of officers for official misconduct, and it tracks all of the criminal procedure protections, so i think that standard of proof should be imported into these proceedings, said that is the reason for that standard. commissioner: i am sorry. you are saying that the scheme for removal of officers is beyond a reasonable doubt? >> yes, that is true, and that is 3060 to 3075, and there are
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cases that discuss those, which we would be happy to provide to the commission. essentially, the da would bring the charges. you would go to a grand jury and get an indictment, and then it would proceed as if on the criminal indictment. i do not want to move on if there are any other questions on that. hearing none, on the second bullet point, on what type of evidence may be commission relied, i think there is probably going to be a some proposed hearsay testimony that we would likely object to, but without getting in to whether the evidence code should be relaxed or not, we are not necessarily opposed to declarations. there may be declarations we are not going to have a problem with. but i think that there is going
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to be the need for some live testimony. the answer to the third question is no. in our view, the law is clear that any conduct in engaged in by sheriff mirkarimi prior to the time that he assumed the office of sheriff cannot be the basis for a finding of official misconduct. that has been the law in this state since the other decision came down. in fact, the city attorney's office them selves have stated that that is the law. in memos they have submitted to the commission previously, that it has to conduct that occurs while in office. i realize they have decided to take a different view of that given the facts of this case, but we believe that that answer has already been answered at the appellate court in this state. commissioner renne: the judge
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rejected that argument, did he not? he said you could come back. >> i want to be fair. i think he characterized the focus of the opinion as dealing with another issue, but i think that the basis of his decision in rejecting our petition for the mandate was because he felt that be administrative procedure had to be laid out first. so -- number four, official misconduct under the charter require that the official misconduct relate to the shares duties, i think that is unequivocally yes, and if so, does -- does the shareable alleged -- alleged this, and our answer is quite clearly know. and whether or not, the question of whether or not the guilty plea itself for the misdemeanor charge of false imprisonment, is that sufficient to sustain a finding of official misconduct,
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the question, no. the effect of whatever record, tethered in time to the date that this action occurred, which was january 1, or january 4. although as i mentioned, i think these allegations of persuasion will be found to be groundless, so the mere fact that a guilty plea was entered at some point and time after he assumed the office of sheriff we think has no significance for the commission. chair hur: obviously, to brief that, we would want the factual and legal basis behind that. any other questions? commissioner renne: i have questions. first, i want to understand about the city attorney's internal investigation on behalf of the mayor.
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putting aside the question of whether the sheriff has any obligation to cooperate in it, putting that question aside, is it your position that having filed the charges and preparing for a hearing before the ethics commission that the city attorney does not have a right to do an internal investigation? >> not at all, sir. we think that if the commission promulgates rules and procedures that are fair to both sides, we would be happy to have them investigate to the cows come home, because, quite honestly, there is nothing to fear here. we just want to make sure that a lot is followed, and the authority that we have been given, they are doing this on behalf of the mayor, they say that they are authorized, the city attorney is authorized to investigate under provisions of the san francisco campaign and
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governmental conduct code. commissioner renne: other than seeking to interview the sheriff, are there other things that you allege they are doing that sort of violate fair play? >> whatever i tell you is going to be on information and belief. i have been hearing about serving subpoenas and try to compel witnesses to cooperate with them. whoever they are harassing, that person can come into court and raise their own objection. we just feel like we have got one hand tied behind our back. if you decide this is what is on to be permissible, to get a compulsory process, you get some limited discovery, and can request documents from the other side. you either debt or do not get a chance to interview the other side's witnesses. personally, i do not think there should be like a civil trial where there is a hole discovery
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process, but whatever the rules are, they ought to apply to both sides. commissioner renne: so are you saying you would like to see the commission gives some rules to say that if the city attorney is using subpoena power to investigate, we allow you to take testimony or do whatever you want for the purpose of discovery? >> absolutely. i think what is good for the goose is good for the gander. commissioner renne: bucket. let me go back, because i am concerned about their request for the timing. he is the most prejudiced. i would like to know from you, if you had your druthers, putting aside your objections as to whether we should be doing this at all, if you had your druthers and know you have to put up with it, tell me how you would like to see it done to be
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the most speedy and the fairest to both sides. >> i would like to obtain at the earliest time from the mayor the list of witnesses and what their proposed testimony would be. commissioner renne: what he intends to approve. ok. >> whether or not it needs to be a unanimous vote, as we contend, and what types of evidence will be admissible. and i think that is really all we need to know to go forward. we know what they are going to put forward before you, and we know what the rules are going to be, and then we will get ready, and we will be prepared at the earliest possible. commissioner renne: what difference does it make for the
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purposes of your speed to tell you whether or not we have to act unanimously? >> it is probably just for our peace of mind, actually. in terms of speed, yes, that will not change the way we hear the case. if the commission feels they need more time to think on those issues, that is ok. commissioner renne: how long after the city attorney has provided you with this list of witnesses and the summary of its case, how much time would you need to prepare and get ready to go to trial and to provide the city attorney with your summary of what you intend? >> i would say 30 to 40 days after that. my best estimate. commissioner renne: ok. chair